DPP v Stephens [2023] VCC 1598

1. Your plea was first indicated on 30 November 2022. The facts relevant to the prosecution opening are as set out in that opening dated February 2023. They are not in dispute.
2. In the context of this case, it is not possible to assess the sequence of events, the injuries, and the consequences for Mr Kim, without reference to the events as a whole. That is, those events undertaken by both you and your father (Jared Pihlgren), together, over the only few minutes that the offending lasted. You have each been charged and pleaded to separate parts of an event with an acknowledgement by the prosecution that there was no joint enterprise in what occurred.
3. In the early hours of 17 December 2021, both you and your father attacked Mr Kim in an entirely unprovoked and a vicious series of attacks. Neither of you knew Mr Kim before that morning.
4. The prosecution accept that the attacks were separate, although you were both present during the entirety of the event. The totality of the injuries suffered by Mr Kim were significant.
5. The event was captured on CCTV. The footage was tendered as part of the prosecution case. It shows that at about 12:28 am on that date, Mr Kim was walking east on Lonsdale Street towards Queen Street. He was being followed by you and your father.
6. At the southern side of Lonsdale Street, you approached him from behind. You and he appear engaged in a short verbal argument. Without apparent warning, you assaulted Mr Kim punching him multiple times to the head and upper body. An observation of the CCTV shows that over that time, you attacked Mr Kim aggressively. He tried to get away from you on several occasions by physically moving away, but you followed him.
7. After a series of attempts by the victim to move away, you chased him back onto the road, pulled his jacket from him, and disposed of it on the roadway. He, again, tried to walk away, but you chased him. I observe that you chased him and punched him at least 14 times during the affray process which, in total, lasted about three minutes. At this point, eventually, he attempted to defend himself by attempting to fight you off. As this occurred, both of you ended up on the ground.
8. CCTV footage shows that your father, Pihlgren, was present and close to the altercation. He did not physically participate until you and Mr Kim were on the ground. At one point, Mr Kim seemed to be partially on top of you, facing towards you. Both you and he were swinging punches. At this point Pihlgren crouched over both of you. He removed a knife from his bag and attempted to stab Mr Kim without making significant contact on the first attempt.
9. Pihlgren's next stab a few seconds later was devastatingly successful. He stabbed him forcefully in the upper left of his back. This caused a deep puncture wound that penetrated through his lung. He then forcefully used the knife across the back of Mr Kim's head in a slashing motion. This caused immediate, significant bleeding. Mr Kim was distracted by these severe injuries and he attempted to defend himself from Pihlgren by trying to grab the knife, but instead, injured his hand. You remained on the ground still grappling with Mr Kim throughout this process.
10. At this point, Mr Kim 'flopped' to the ground and lay motionless for a few seconds. You got up from the ground and moved a few steps away. Your father also moved away from Mr Kim, who remained motionless. It is clear from the CCTV that he was significantly injured, bleeding heavily, and barely moving.
11. You remained a few metres away and looked in the direction of Mr Kim. He attempted to roll over to his side. Seven seconds after standing up, you quickly returned to where he was lying on the ground. You rapidly moved towards him and stomped onto the side of his head. CCTV footage shows that this stomp was undertaken with considerable force; you jumping from two feet to heavily stomp on his head with one foot, with, as I said, considerable force. Your foot was directed to the side of Mr Kim's head. He was lying on the footpath.
12. At the moment before you jumped, apparently seeing you approach, Mr Kim raised both of his hands in your direction in a defensive motion. He was unsuccessful. He did not move immediately after his head was stomped on. My observation from CCTV footage is that he remained completely still for about three seconds and showed no signs of consciousness. He was bleeding heavily. You and your co‑offender both stood on the footpath nearby looking at Mr Kim as he lay on the ground for a few seconds, before ushering each other away.
13. Passers-by approached about 10 to 20 seconds later. One appears to have a short conversation with Mr Kim. One of them took off their shirt in an attempt to staunch the bleeding. My observation is that Mr Kim appears unresponsive for most of the time while on the ground.
14. Several minutes later, police and ambulance arrived. The victim was treated at the scene before being transported to hospital. A significant amount of blood was observed on the footpath.

1. A medical report from Dr Schreiber of the Victorian Institute of Forensic Medicine noted that Mr Kim's condition was initially life-threatening. He required a chest drain insertion and emergency surgeries.
2. Dr Schreiber concluded that there was a sustained sharp trauma to the torso and hand, and there was injury to his spine. Injuries to Mr Kim's chest were deep and life threatening. He suffered significant lung collapse and heart failure. He also required resuscitation. Without hospital intervention, he would have died. This is the life-threatening injury relied on by the prosecution in relation to the charge against your father, Pihlgren. It is not in dispute that this is the result of the first successful stab inflicted by him.
3. In an additional report dated 21 June 2022, Dr Schreiber noted that there was blunt trauma to Mr Kim's head and face. There was what he referred to as an 'indentation', caused by significant force. Bleeding was caused apparently by laceration, which, without intervention, could have been life-threatening. It is the prosecution case, and it is not disputed, that the laceration injuries were inflicted by Pihlgren when he administered the second stab to the back of Mr Kim's head.
4. Mr Kim also suffered soft tissue injuries, bruising and pain to his face and body, including his head. The consequences of the stabbing are relatively easy to identify. The injury caused by the head stomping, however, is more complex. Dr Schreiber, in his evidence on 30 November 2022, opined that a skull indentation, close to a head laceration, may have been caused by an incision or laceration to the back of the head.
5. Dr Schreiber differentiated this wound to that produced by a stabbing event with the results as observed on Mr Kim's chest. Dr Schreiber also observed that other possible causes for the skull indentation could be punching, stomping or falling to the ground. There is, of course, evidence of stomping.
6. The injury caused by your head-stomping is difficult to quantify in isolation, separate to the laceration injury. The fact that Mr Kim was incapacitated at the time of the stomping assault by you is highly relevant. He was not able to avoid your attack, although he tried. He was completely vulnerable.
7. Common sense suggests that a significant blow to the head shortly after a significant laceration to the same body area would further compromise a victim's physical presentation. There is evidence consistent with at least a temporary compromise of his consciousness in the CCTV. I do not suggest that his loss of consciousness is entirely the result of your stomping action. I do, however, find to the required standard that the combination of both acts contributed to that loss.
8. There is equally no doubt that the psychological consequences for Mr Kim were the result of the totality of the offending. This injury is obliquely relevant when assessing your part in the injury as a whole. This, in turn, is relevant to the objective seriousness of your individual offending. These matters will be considered when addressing accumulation of sentences for both offences.
9. I do not agree with the submission contained in paragraph 5, that taken in this context, the injury produced by you is at the lowest end of seriousness for the offence charged. The definition of 'injury' in s 15 of the Crimes Act 1958 (Vic) includes physical injury and harm to mental health. Your actions contributed to both.

1. There is no challenge to the content of Mr Kim's Victim Impact Statement. There is no doubt that this event perpetrated by both you and your father continues to cause him real physical and psychological damage. He told the Court that his heart stopped for three minutes. He was in a coma for three days. He suffers continued pain in his body as a result of the totality of the attacks. His psychological presentation now includes PTSD, anxiety and panic attacks to the extent that he is unable to work or even exercise properly.
2. As a result, every aspect of his life has been detrimentally affected. This is the direct result of the attacks perpetrated by both you and your father. I accept that the injuries caused by your father's actions had the most significant physical effect. However, your father could not have attacked the victim in such a way unless and until he was distracted by you. You have not been charged with any sort of joint criminal enterprise offending and I do not conflate these matters, but the observation is without doubt.

1. I acknowledge that matters resulting in a finding of aggravation of the seriousness of the circumstances of the offending must be based on facts which prove such matters beyond reasonable doubt. Matters which are in mitigation, or in your favour, are to be proven on the balance of probabilities.

1. The attack, from its commencement, was completely unprovoked. I do not accept your self-report to the CCO assessment report author that Mr Kim instigated the fight. This is inconsistent with my observations of the CCTV footage and inconsistent with the prosecution opening.

1. The event occurred at night in the Melbourne Central Business District. Motor vehicles and pedestrians were present. At one stage, you chased Mr Kim onto the roadway. In doing so, you interrupted traffic and created further potential danger for the community over and above the sense of fear and unease that your attack, itself, would have caused.
2. The aggression and violence of your assaults and continued affray was extreme.
3. Your counsel submits that the length of time the affray took was relatively short and that is true. However, as noted above, it entailed several incidents of you attacking the victim while he was trying to get away before chasing him across the road. The final part of the affray when you were on the ground together was relatively short, but that was far from all of it. The event came to a halt due to the intervention of your father which incapacitated Mr Kim.
4. Any injuries to Mr Kim as a result of the series of assaults that made up the affray were as a result of what I observed to be at least 14 punches to his head and body. You were punching and chasing him for some minutes before your father intervened. Mr Kim was unable to escape you. His only available response was to protect himself, or at least attempt to, by trying to fight back. You continued to fight him even after your father had begun to stab him.
5. Your counsel submitted that the other indicia of potential aggravating circumstances, such as planning and the use of a weapon, are absent. I accept that there appears to have been little planning, if any. I also accept that no weapon was used by you. There was, however, considerable violence which overflowed to obstruct traffic.
6. Through your counsel, you submit that this is a low to mid-range example of affray. Taking into account the above observations, I find that this is an example of mid‑range objective seriousness for the offence charged.

1. The act which caused the injury was as deliberate as one can imagine.
2. Mr Pyne, I just noticed that your client has left the room. What do you want me to do?
3. MR PYNE: I am sorry, Your Honour, I just noticed that, I was taking notes of Your Honour's sentence.
4. HER HONOUR: Yes, I have just been keeping an eye on the screen and in the last couple of minutes, a minute, a very short time, your client has left the room. What do you want me to do?
5. MR PYNE: I am just - - -
6. HER HONOUR: I will just sit here quietly for a minute while you figure out something.
7. MR PYNE: I wonder if my learned friend - there is specific provision in the Criminal Procedure Act given with the presence of the accused for sentence, I am just trying to bring it up.
8. HER HONOUR: Well I do not know why he has left or whether there is something - - -
9. MS COOMBES: No - - -
10. HER HONOUR: I do not know, he might not be well. I do not think I can really readily assume that he has just jumped up and ran away because he wants to. I believe that I can sentence him in his absence, but I do not want to really without hearing from you.
11. MS COOMBES: Your Honour, I think in all the circumstances Mr Pyne should probably make the enquiry or Your Honour's staff to contact - - -
12. HER HONOUR: Yes, we are trying to do that now.
13. MS COOMBES: Yes.
14. HER HONOUR: But I do not know if Mr Pyne has got - if you have got access to be able to speak to him?
15. MR PYNE: No, I will not have any more access than what the Court has.
16. HER HONOUR: No, okay. What I will do is I will just ask my Court staff to try and contact the prisons to see if there is something going on that I should know about and we will see.
17. MS COOMBES: Yes, Your Honour. Your Honour, the relevant provision, whilst we are waiting, is s 18P of the Sentencing Act 1991 that prescribes the offender to be present during hearing, so I am just looking at that section now. I may have been a little bit hasty there, Your Honour, I am just reading through that section. So I will come back to Your Honour - - -
18. HER HONOUR: I am pretty sure there is some case law on it.
19. MS COOMBES: Yes.
20. HER HONOUR: Where somebody has absented themselves. And in fact I know that there is a New South Wales Supreme Court case on it which says that it is possible to sentence somebody in their absence, and the name will come to me shortly. But, look, my first concern is really to find out whether he has absented himself, you know, because he - - -
21. MS COOMBES: Yes, of course.
22. HER HONOUR: - - - he made that decision or there is something wrong.
23. MS COOMBES: Yes. I am just reading through that provision now, Your Honour, and - - -
24. HER HONOUR: Yes, no that's (indistinct) - let us solve the first problem first, we do not know yet.
25. ASSOCIATE: They are in touch, they just have not heard back.
26. HER HONOUR: Yes.
27. ASSOCIATE: Your Honour, Corrections advise that Jay Stephens is 'still there but is sitting outside of the court. He does not wish to return to the room as he does not want to hear what is being said'.
28. HER HONOUR: All right, so Mr Pyne, did you hear that?
29. MR PYNE: Yes, I did, and I am just - - -
30. HER HONOUR: Okay. What I am going to suggest, if you like, and it is entirely up to you, but you may want to speak to your client.
31. MR PYNE: Yes, I will definitely try and do that. I was just looking at what the law is in relation to sentencing in absentia and I have been able to find some material, but hopefully we do not have to go down that path. I do not know whether it is possible for him to be told - perhaps for Your Honour to stand down and for him to be told that it is just me on the link and for me to speak to him now but I know that I - - -
32. HER HONOUR: That is what I was going to suggest. I will wait outside. Can we get a message to him that if he can come back into the room, only Mr Pyne will be there to speak to him. It will either work or it will not, Mr Pyne, I do not know.
33. MR PYNE: Yes, Your Honour.
34. HER HONOUR: We will give it a go. So what I will do is I will - I know where I am up to in the sentence. For your information, Mr Pyne - what can I say - look, I am about halfway through and I have not got to the point where I am getting to the point of the things that might be in your client's favour, if I can say that in general terms.
35. MR PYNE: Yes.
36. HER HONOUR: I will adjourn now. Thank you.
37. (Short adjournment.)
38. HER HONOUR: Mr Pyne, is there anything I need to hear from you?
39. MR PYNE: No, Your Honour, we can recommence.
40. HER HONOUR: All right, thank you. I will recommence where I think I was up to and I was talking about the offence of inflict injury.
41. In relation to that, I note that there was some pre-offence contemplation. After your father intervened and after you got off the ground, you paused for a full seven seconds before running back to stomp on Mr Kim's head. There is no evidence of planning, however, and it was not in any way part of the previous fight with Mr Kim. It is fair to find that your conduct in stomping on his head was callous and violent.
42. In accepting your pleas to the charges now before the court, the prosecution accept that your involvement, as reflected in the intentionally causing injury charge, is entirely separate from your father's stabbing which caused a 'serious injury' for the purposes of the Crimes Act 1958 (Vic).[1] The charge of intentionally causing injury charge is separate from your father's stabbing, which caused a serious injury for the purpose of the Act.
43. Whatever the immediate cause of the skull indentation, reason and common sense suggest that stomping on one's head after an incision to the back of the head could aggravate any injury that was caused by that incision. I accept that there is insufficient evidence to find, to the required standard, that the indentation was caused by your action alone.
44. Considering the totality of the circumstances of the offending, and the degree of injuries which can be sheeted home to your actions, this offending is an example of mid-range objective seriousness for the offence charged.

1. You were arrested shortly after the event, in December 2021. You did not make any admissions. You accepted your guilt and noted an intention to plead to the affray charge in the November 2022 response. You will be entitled to a substantial discount with respect to the plea on the affray matter, based on the Worboyes decision.
2. In relation to the more serious charge, you were originally charged with intentionally causing serious injury. The matter was listed for a 3-day judge alone trial, with the primary dispute being the nature and cause of the injuries. Few witnesses were required. Negotiations immediately prior to the commencement resulted in your plea to the current charge. It was a late plea.
3. It was submitted on your behalf that your plea to the current offence should also attract a significant reduction in sentence based on the reasoning in Atholwood v The Queen.[2] The s198B cross examination undertaken prior to trial was necessary to a fact in issue in relation to the more serious offence charged. It is also accepted that your plea meant that Mr Kim was not required for cross examination, although cross examination of a victim who could remember nothing about an event that was recorded on CCTV probably would have been unhelpful anyway.
4. The s 198B hearing was in November 2022. A plea offer on this charge was a last minute one. The administration of justice was assisted.

1. You are now 23 years of age. You have admitted, for one so young, a significant criminal history both in Victoria and interstate. Prior offending includes convictions for dishonesty offences and drug possession offences. You have a significant number of prior offences relating to the use of violence. This includes 2018 offence relating to family violence offending and assault occasioning actual bodily harm, both of which were dealt with in Queensland.
2. You have been placed on various community supervision orders in Queensland on prior occasions, apparently, to no avail. In 2019, you were sentenced to a term of imprisonment in Queensland and released on a period of parole.
3. You were subject to that parole order when in June 2019, you committed a serious offence of recklessly causing serious injury in Victoria.[3] In May 2020, you were sentence to a term of imprisonment by His Honour Judge Lacava. For reasons that appear in his decision, you were released without further supervision. It seems that His Honour had an understanding that your Queensland parole order may be followed up at the conclusion of the sentence he imposed. For reasons of which I am unaware, this does not seem to have occurred.
4. In paragraph 16 of your counsel's submissions, counsel sought to rely on the findings of Judge Lacava in relation to the recklessly cause injury matter sentenced in May 2020. While His Honour's remarks may have been relevant to that time and while his views are noted, they are not binding on this Court.
5. Your prior record is not an aggravating circumstance on the current offending but may be relevant to sentence considerations in ways to which I will refer to below.
6. Since being arrested on the current matter you have apparently been sentenced to an aggregate term of imprisonment for an offence including recklessly cause injury. As at today's date, on my calculation I believe there are 576 pre-sentence detention days relative to this matter only but that figure will be confirmed, I am sure, at the conclusion of my sentence.

1. A report by Carla Lechner dated 7 April 2020 was tendered by consent. It is now over three years old, having been provided for the sentence hearing referred to above. That offending related to an unprovoked attack on a man who suffered serious injuries. You were in company on that occasion with your younger brother. It was a very serious offence, according to the observations of Judge Lacava.
2. You were, however, granted significant leniency by His Honour who expressed that he made allowances due to your youth and the expectation that you would be returned to Queensland to complete parole or be dealt with for a breach there. It seems not to have occurred. I suggest that authorities make enquiries to see if that warrant is still outstanding and/or to advise Queensland authorities of your current placement.
3. At your plea hearing for this matter, no more recent information was available. I do not know why. Your counsel submitted that for a number of reasons this Court ought consider a combined sentence, with you to be released on a supervised CCO at the conclusion of a term of imprisonment. I expressed doubts as to the appropriateness of such a disposition for a number of reasons, but determined, given your relative youth and lack of any current information as to your presentation, an extended report would be sought. Any information that might update your presentation, if it could be of assistance, ought be accessed.

1. The Court only had available to it a report by Ms Carla Lechner which was prepared in April 2020 and was prepared over a video link connection. It is noted that some psychological testing was undertaken. You were reported to be polite and pleasant throughout the interview. The prosecution do not challenge the contents of that report. There is little doubt that on the history relayed, a finding can be made that you suffered an extremely dysfunctional upbringing. You report experiencing significant neglect and violence throughout your childhood. You were placed into care aged 12 years and your education ceased in Year 8 .
2. You reported that you had a long history of substance abuse starting at age 13. You and your father were homeless for significant parts of your later teenage life. You and your father have both been imprisoned from time to time, often, as now, at the same time. In 2020, you reported that your father was your only social connection.
3. In 2020, Ms Lechner opined that you presented with a history of complex developmental trauma combined with ongoing post-trauma symptoms. At that time, you had an indication of an alcohol and polydrug abuse disorder and, perhaps, a major depressive disorder. It is noted that in relation to previous offending, you claimed that you were under the influence of substances. At the time you spoke to Ms Lechner, you expressed a strong desire to be involved in therapeutic work and appropriate services were recommended for you. I have no information whether you sought those services out on your previous release from custody.
4. You report being the father of one child with whom you have had no contact with at least up until 2020.

1. The most recent CCO report presents a slightly different version of your current personal circumstances. The CCO report writer had access to appropriate pre‑report material. You were again assessed over video link but were reported to be disinterested in the process. You denied being drug or alcohol effected at the time of this offending and reported that you had ceased using drugs at the time of your previous incarceration.
2. You reported that you consumed alcohol sometimes, but that it was not an issue for you.
3. You reported no interest on this occasion in psychological therapy or intervention. In this context, it is observed that when you were previously ordered to participate in such programmes in Queensland, you failed or refused to do so. You indicated, however, on this occasion, a willingness to speak to a psychiatrist. This may be something for corrective services to consider in due course.
4. In relation to your physical health, you report an ankle injury near to the time of the current offending. You state that you were wheelchair bound as a result, but as I have observed above, this does not seem to be supported by the CCTV footage of the event.
5. The CCO report writer was required for cross examination on the contents of the report. Of particular contention was the observation that you did not volunteer any information accepting or understanding the consequences for the victim of your offending. The report writer was also cross examined on her understanding on the failure of supervision for the Queensland‑based sentences. I find that she reported what she was told accurately. She was questioned on whether you indicated that you had pled guilty to some in-custody offences. She did not know this, but that seems to be due to her observation of you being reluctant to communicate as opposed to anything else.
6. It is noted that you were not found to be particularly suitable for a supervised CCO. It is not suggested that this observation would disentitle the Court to make such an order if it was thought otherwise appropriate. High intensity supervision programmes, drug and alcohol programmes and mental health support are all available when and where required. The CCO report writer was sadly unaware of any in‑custody programmes.
7. Generally, I found the report to be fair and balanced. It may well be that you were not having the sort of day where communication came easily to you. It is observed that you find some of the structure in custody to be challenging from time to time.
8. The three-year-old Lechner report makes some observations of your then presentation that may enliven Verdins considerations. I have no reason to believe your situation has altered much, and indeed, the observations of the CCO report writer really support this observation.
9. Ms Lechner observed symptoms displayed by you to be, at that time, consistent with an alcohol use disorder, poly substance abuse disorder, and a major depressive disorder. Lechner also observed what she referred to as a psychological immaturity - leading to an inability to regulate your behaviour. This observation was in the context of her observations of you as a younger man, but I have no information that the situation has much altered.
10. Again, I note that I have little on which to base an understanding of your current offending. Your current self-report suggests that alcohol and other substances no longer present an issue and were not a factor in the December 2021 offending. I have no information otherwise.
11. In considering the information I have concerning your background, I acknowledge that your dysfunctional formative years and complete lack of appropriate parental modelling must reduce your moral culpability for this offending. The observations of the High Court in Bugmy's case reflect the truism that disadvantage resulting from such a lack of parental modelling and an extremely dysfunctional background do not diminish over time. There is information, which I accept, that you did not receive parental modelling for anything except antisocial behaviour. The continued presence of your father in your life may not have assisted.

1. I accept that the principles outlined in Bugmy v The Queen[4] are relevant to your presentation, at least, as you presented in 2020. It is acknowledged that in nearly all cases, the effects of profound childhood deprivation do not diminish over time. I accept that the sort of dysfunction, disadvantage and abuse reportedly endured by you in your formative years have, on any observation, shaped your personality and responses. I accept that this is still likely to be the case. These matters are therefore relevant to an assessment of your moral culpability.
2. While a disadvantaged upbringing may, in some cases, reduce moral culpability and in many cases, reduce the importance of general deterrence as a sentencing principle, it does not necessarily have the same mitigating relevance for all of the s 5 Sentencing Act purposes. Considering your criminal record to date, you have displayed an ongoing inability to control your violent responses. In your dated conversations with Ms Lechner, you and she appeared to attribute the cause of your violent 2019 offending to your background of significant violence in your parent's home and in their company since that time. I accept that observation.
3. I accept that while your moral culpability may still be reduced for the current offences. However, your extreme antisocial presentation and your inability to control your violence on the other hand increases the need for the Court to consider the importance of protecting the community from you and from your extremely violent behaviour. Support for this view is found at paragraph 44 of the Bugmy[5] decision and explained in the relatively recent Victorian case of DPP v Silivaai [2023] VSCA 19. The recently provided case of Newton does not vary this observation.
4. Considering the apparent increase in the frequency and violence of your offending, community protection must be a real consideration for the sentence imposed.

1. Your Counsel submits that it is possible that a prolonged period in custody may impair your prospects of successful rehabilitation. There is no evidence to support this generalisation, but it is a common but somewhat unhelpful submission. This is the longest time you have ever been in custody. I accept that your occasional misbehaviour in custody points to some difficulties in complying with all of the rules all of the time. I accept that for some time, COVID lockdowns have made your time in custody more burdensome. This will be taken into account. Considering the difficulty you have had in engaging in either directed or self-directed therapy in the past, I have real concerns as to your future cooperation, unless you are encouraged to undertake some engagement with therapeutic programmes before your release.
2. That process, at least, has the possibility of increasing your chances of being open to changing your responses in the community. The recent pre-sentence report observes that, in any event, at present, you have no interest in being the subject of a supervised order. You were obviously not wanting to engage with the preparation of that report. I do not know why, but that is your right. You are entitled to adopt that position. Perhaps that attitude may soften if you consent to engaging with some assistance while you are in custody. I can only hope so.
3. In turn, the pre-sentence report writers suggest that you are not a suitable candidate to undertake supervision in the community, at least, at this stage. This observation considers your track record so far of your reluctance to participate, and your previous failures to follow directions in another State. At this stage, I notice your resistance to even engage in the assessment process. But as I said before, this report is advisory only.
4. Although not directly addressed by your counsel, there are other considerations to keep in mind when considering an appropriate sentence for you. It may well be that your complex trauma presentation may trigger traumatic recollections while you are in a custodial setting. I accept that this may well make your time in custody more onerous than for a person without such presentation, although this is far from your first time. I also accept that any time you spend in custody is unlikely to be rehabilitative unless you, at the same time, undertake appropriate programmes if they are presented to you. I will, by these reasons, hopefully encourage the authorities to do what they can to encourage you.
5. As far as I am aware, any previous time in custody has not been of sufficient duration after sentence for in-depth programmes to be put in place. Most of your previous sentences have, in effect, resulted in largely 'time served' effective releases.
6. I also note that you are only 23 years of age and that you were 22 years old at the time of the current offending. Your counsel rightly suggested that the Court would be guarded about your prospects of rehabilitation. I am. The pre-sentence report is even less optimistic, suggesting that you currently present a high risk of general reoffending. This observation, in effect, only reinforces the observations in the previous Lechner report. However, I do note that when you were about to become a father some years ago, you report that you took it upon yourself to attempt cessation of substance abuse. This indicates, at least to me, that you had an awareness of the requirements of functioning in a non-damaging way and I perceive this as being a start.
7. It is submitted on your behalf that a term of imprisonment followed by a supervised order would be difficult for you and Boulton's case[6] was referred to. While I accept that in many circumstances a supervised order can be both burdensome and beneficial, care must be taken to ensure that such an order has some prospects of being complied with. In your case, I see no realistic possibility that you will be able to operate effectively in the community without some attention being paid, pre-release, to ensuring that you are in a reasonable state of mind to participate in community supervision.
8. The proposition that you should be released into the community on a fixed date, whether you have undertaken any in-custody programs to address your emotional, substance abuse and anger difficulties would, in my view, simply be setting you up to fail again. It would not address the need for community protection and do little to assist you in your rehabilitation.
9. A sentence which sets an appropriate total term, but a longer than usual parole supervision period will allow for that parole period to be adjusted, if necessary, after a consideration of your risk to the community and those safety mechanisms that can be put in place before your release.
10. If you are willing to undertake such pre-release programmes as are available for your presentation, the parole authorities may be convinced that you have better prospects of being able to be supervised in the community than what you currently seem to be assessed as. You will have to cooperate. If you decide not to, then be in no doubt that those deciding whether to release you on parole at an early date will take that into account.
11. A fixed term sentence does not afford any incentive to you involve yourself in improvement programmes prior to your release. Looking at your history, I find that unless you do so, your prospects of rehabilitation are slim.
12. The proposition that you ought be sentenced to a combined sentence suffers, however, from an even more basic flaw. Even considering your pre-sentence detention, I do not find that the term available would sufficiently reflect the seriousness of your offending. On this consideration alone, a combined sentence would not fulfil the requirements of just punishment, specific deterrence, denunciation nor community protection.

1. I propose to sentence you to a term of imprisonment. The total term will reflect the seriousness of your offending taking into account your reduced moral culpability. The non-parole period will reflect the minimum term that you must serve before being eligible for parole. The period of parole supervision will give you the opportunity of supervised release if you are considered, then, to be in a position of being able to be supervised safely within the community in a way that is beneficial to you.
2. I am of the view that when you are eligible for parole, it will be at a time when Corrections have had the opportunity of assessing whether you are less of a risk to the community than you are now. A psychiatric assessment may be indicated, if you are still willing to participate and this is something that I would recommend. Considering the last professional report of any kind was three years ago, I suggest a psychiatric assessment at this stage may well be of assistance. There is much to be addressed for your future community management.
3. I propose, however, to order a far longer period of supervision on parole than would normally be the case because of the factors referred to above. This is so that you would receive as much supervision as possible in the community at the conclusion of the non-parole period. Conditions of parole should take into account the observations of the pre-sentence report writer and of Ms Lechner's observations.

1. In relation to a further sentencing consideration of parity, I note for the record that parity is of limited relevance. To some extent, the criminality of the entire event must be considered as a whole, notwithstanding the different charges. However, the prosecution accept that you and your father's roles were much different and the event was not an activity of pre-contemplated joint criminality. Of course, I also take into account the difference in your ages and the difference in your relative histories. It is obvious that your father faces a far more serious offence and that his criminality was at a higher level. In addition, with youth on your side, you have at least, the potential to rehabilitate.

1. Jay Stephens, in relation to count 1, causing injury intentionally, I sentence you to a term of imprisonment of 4 years and 9 months. This is the base sentence.
2. On count 2, affray, I sentence you to a term of imprisonment of 1 year and 9 months with 12 months of this sentence to accumulate on the base sentence.
3. The total effective sentence is, therefore, 5 years and 9 months' imprisonment.
4. I fix a non-parole period of 3 years and 3 months' imprisonment.
5. Pursuant to s 6AAA of the Sentencing Act 1991 (Vic), had it not been for your plea of guilty, I would have sentenced you to a term of imprisonment of 7 years and 9 months duration with a non-parole period of 5 years' imprisonment.
6. Now, we will just check the pre-sentence detention, I had 576 days and I think we still have that.
7. MR PYNE: That was my understanding, Your Honour.
8. MS COOMBES: Yes, Your Honour, that's correct. That's correct, Your Honour, yes.
9. HER HONOUR: Okay. I will just go through those numbers again, counsel, because I am sorry I stumbled on the way through.
10. Count 1, which is causing injury intentionally, the base sentence is 4 years and 9 months.
11. Count 2, affray, the sentence is 1 year and 9 months with a 12 month accumulation on the base sentence.
12. That makes a total term of 5 years and 9 months' imprisonment and a non-parole period of 3 years and 3 months; 576 days pre-sentence detention.
13. Mr Pyne, do you want again some time privately to speak to your client?
14. MR PYNE: No, not at this stage. We'll be in contact with Mr Stephens at a later time.
15. HER HONOUR: In another way, all right. Is there anything else?
16. MS COOMBES: Your Honour, I think there was a disposal order or an application that was made perhaps at the very outset. Has Your Honour got that application there for not?
17. HER HONOUR: Not in front of me at the moment.
18. MS COOMBES: No.
19. HER HONOUR: Just let me have a look. What was it for?
20. MS COOMBES: Well, Your Honour, from memory it may have been for the knife. Obviously originally they were both joined as co-offenders. I just unfortunately my e-brief has seized and I can't access the document to check the items.
21. HER HONOUR: I think I made a disposal order for the knife at the conclusion of Mr Pihlgren's case because that's - - -
22. MS COOMBES: Yes, and I would expect that to be the case, yes, Your Honour. But because I do recall from the opening that there was a disposal sought, I just can't access the document to see what the items are, but if I could just flag that, if that is there, Your Honour. If those items have already been disposed of through that order being made for the co-offender, then obviously that's been dealt with but I just wanted to raise that.
23. HER HONOUR: I'm pretty sure Mr Pyne is not going to want to be heard in relation to that because the knife's got nothing to do with his client.
24. MS COOMBES: No, that's right.
25. HER HONOUR: I have no difficulty in making that order if it is not already made. At this moment I just can't remember.
26. MS COOMBES: Yes, and I am sorry I am unable to assist, as I said my computer, I've had some issues this afternoon, Your Honour. But I can contact or have my instructing solicitor contact the Court if there are items that need to be sought under that application.
27. HER HONOUR: I'm sure we can manage, okay.
28. MS COOMBES: Yes, thank you, Your Honour. Nothing else other than that, Your Honour.
29. HER HONOUR: If there's nothing else, nothing else Mr Pyne? Nothing else Mr Stephens? We'll adjourn now. Thank you counsel for your submissions. We will adjourn now.
30. COUNSEL: May it please the Court.

[1] See section 15 of the Crimes Act 1958 (Vic) which defines serious injury as an injury (including the cumulative effect of more than one injury) that endangers life or is otherwise substantial and protracted.

[3] See DPP v Stephens [2020] VCC 626.

[4] [2013] HCA 37.

[5] See also Munda v Western Australia [2013] HCA 38.

[6] See Boulton v The Queen [2014] VSCA 342; [2014] 46 VR 308.